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C of A
(CRI) 5/90

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of:

TSITSO
MATSABA APPELLANT

v

R E
X RESPONDENT

Held at
Maseru

Coram :
Kotze' J.A.

Browde J.A.

Leon J.A.

JUDGMENT

Kotze'
J.A.

Following
upon a series of grotesque killings by shooting Tsitso Matsaba
(hereinafter referred to as "the appellant" for
want of a
more accurate description) stood trial before Lehohla J. and
assessors in the High Court on five counts of murder committed
at
Mount Moorosi on 6th

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July
1988. I find it unnecessary to canvass the details of the offences
charged. Suffice it to say that the trial Court found the
allegations
contained in the indictment proved but that at the relevant time
appellant did not know what he was doing and that
he was, as a result
of voluntary intoxication, insane. As a result the trial court
invoked the provisions of sub-section (3) of
section 2 of the
Criminal Liability of Intoxicated Persons Proclamation 60 of 1938 and
returned a special verdict or finding in
terms of sub-section (3) of
section 172 of the Criminal Procedure and Evidence Act 7 of 1981 to
the effect that the appellant is
guilty of the acts charged against
him, that he was insane at the time when he did the act and ordered
him to be kept in custody
in an appropriate prison pending the
signification of the King's pleasure. The appellant purported to note
an appeal against the
said special verdict or finding on the grounds
that the trial court erred

1. in
   applying the provisions of Proclamation 60 of 1938 and

   
   

2. in
   not convicting him of culpable homicide.

   
   

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At the
hearing of the "appeal" this Court mero motu requested
Counsel to prepare and submit argument as to whether a finding
in
terms of sub-section (3) of section 172 of Act 7 of 1981 is a
"conviction" for the purpose of sub-section (1) of section

7 of the Court of Appeal Act 10 of 1978 and, if not, whether an
appeal is competent at the instance of the appellant in terms of
the
said sub-section (1) of section 7. We are indebted to Counsel for
their swift and helpful response to the Court's request.

Sub-section (1) of section 7 of Act 10 of 1978 provides that "any
person convicted on a trial by the High Court may appeal
to the Court
"(i.e. this Court)" on any matter of fact as well as on any
matter of law."

The
crucial question to be determined in deciding whether an appeal is
properly before this Court therefore is whether the special
verdict
or finding of the Court a quo is a "conviction" within the
meaning of that term in sub­section (1) of section
7 of the Court
of Appeal Act. The Appellate Division of South Africa held in R v
Ngema and R_ v Cele 1960 (1) S.A. 137 that the
somewhat similar South
African provision contained in sub-section (1) of section

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29 of the
Mental Disorders Act, 38 of 1916 does not constitute a conviction. In
so far as relevant the South African sub-section
reads:

"When ... any act or omission is alleged against any person as
an offence ... if it appears ... to the court ... that he did
the act
or made the omission charged but was mentally disordered or defective
... at the time when he did or made the . same ...
the court ...
shall return a special verdict or finding to the effect that the
accused was guilty of the act or omission charged
against him, but
was mentally disordered or defective ... at the time when he. did the
act or made the omission."

OGILVIE
THOMPSON, J.A. (with whom four other Judges of Appeal concurred)
said:

" Examining sec. 29 (1), it lays down that, where its
introductory provisions are satisfied, the court etc. must return the

"special verdict or finding" described in the sub-section.
The terms of that special verdict, and indeed of the section
as a
whole, make it plain, I think, that the accused is not by the special
verdict convicted of the offence alleged against him
in the
indictment summons or criminal charge upon which he has stood his
trial. The special verdict does employ the word "guilty",

but it is to be observed that the words are "guilty of the act
or omission charged against him", and not "guilty
of the
offence". Furthermore, the words "as aforesaid", where
they occur in the remaining portion of the special
verdict, relate
back to the earlier portion of the section. Thus expanded, the
concluding portion of the special verdict reads:

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but was mentally disordered or defective so as not to be responsible
according to law for the act or omission charged at the time
when he
did the act or made the omission".

It is thus apparent that the words "guilty of the act or
omission", where they occur in the special verdict, mean no
more
than "committed the act or omission".

The above
passage is, in my view, entirely applicable to the legislation here
in issue and is decisive. The section 172 does not
constitute a
conviction for the purpose, of sub-section (1) of section 7 of the
Court of Appeal Act is therefore unavoidable.

One
further consideration lends support to this conclusion. Intoxication
in the limited circumstances envisaged by sub-section (2)
of the
Criminal Liability of Intoxicated Persons Act which sets the
provisions of sub­section (3) of section 172 of the Criminal

Procedure and Evidence Act into operation constitutes a "defence"
to the criminal charge in question. Being so regarded
by the
legislation which lies at the root of the Court's finding it would be
incongruous to regard it as a "conviction".

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The
matter should in my view be struck off the roll.

Delivered
at Maseru this 16th day of July, 1993.

G. P. C.
KOTZE'

JUDGE OF
APPEAL

I agree.
The matter is struck off the roll.

J. BROWDE

JUDGE OF
APPEAL

I agree.

R. N.
LEON

JUDGE OF
APPEAL